EQUITY SEMESTER 2 2018: DOCTRINAL ANALYSIS

I Introduction
An injunction must be obtained in order to restrain Tom from acting for Hugo. This paper reviews the
elements of a breach of confidence to show that Tom can be prevented from acting on behalf of Hugo
Chase. It will also assess remedies provided by the court to

II Specific Information
The information claiming to be confidential must be defined with sufficient precision. 1 An unclear
identification of the information would render any injunction uncertain and hard to enforce. 2 Tom is
also entitled to know the particulars of the case to be answered in order to show whether the
information was in fact public knowledge. 3 Here the contentious information would be the content of
Tom’s report to the partners.

III Necessary Quality of Confidence

Tom’s position as senior employee may inherently suggest that his report was in fact confidential.
Also, the report was restricted for the partners’ use only. There is no information in the facts
suggesting the information in the report was well known to the public.

The information remains secret regardless of its communication to Hugo Chase. It is still not
generally accessible. The secrecy of the information does not stop when other people have knowledge
of the facts.4

IV Circumstances Importing Duty

The obligation of confidence is imposed if the circumstances are such that a reasonable person in the
shoes of the recipient of the information would realise that the information was given in confidence. 5
A reasonable person in the shoes of a partner like Tom would understand that the information
regarding the handling of a case is confidential between partners and clients. The report was for the
partners use.

1
O’Brien v Komesaroff (1982) 150 CLR 310.
2
Ocular Sciences Ltd v Aspect Vision Care Ltd [1997] RPC 289.
3
Ibid.
4
Australian football League v Age Company Limited [2006] VSC 281.
5
Coco v A N Clark (Engineers) Ltd [1969] RPC 41.
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 V Breach
Disclosing the information to Hugo was an unauthorised use. The report was for the partners’ use
only. Also, acting for Hugo Chase can be interpreted as a threat to make use of the information.
However, no confidence is owed if the information is discovered through the defendant’s own
endeavours.6 Tom wrote the report but only upon orders of Fides solicitors. Although he put effort in
the report, the information was not gained through his own endeavours but rather through Fides
Solicitors’ efforts.

VI Detriment and Defence

Except in circumstances of government secrets it is unclear whether detriment is needed to prove a
breach of confidence.7 There is a clear detriment here on the reputation of Fides Solicitors.

To satisfy a defence on the basis of iniquity one must satisfy the elements set up by Justice Kellam. 8
Here the alleged crime is the impediment of the court by solicitors. The report, however, contains
worrying but unsubstantiated allegations which is not enough to prove the first element of the defence
which is a real likelihood of the existence of an iniquity. Information relevant to the possibility of or
the suggestion of a crime is not enough.9 The information must prove a crime.

The defence of public interest may be relevant. The facts relate to the allegation of shredded
documents and relates more to the ethics of the solicitors than the health concern in itself. This may be
interesting to the public but not in the public interest. The keywords are ‘unsubstantiated allegations,’
the defence would apply if there were factual evidence of a public concern. However, in this case it
seems unlikely.

VII Remedy
An injunction can be sought preventing Tom from acting on behalf of Hugo Chase as there is a
substantial risk of Tom disclosing the information while acting in that position. Equity can protect
Fides from any further breach.10 Yet, the court has discretion to award remedies and may choose not
to provide an injunction in this case. It must also be noted that there may be solicitor’s guidelines
preventing Tom from acting on the case due to a conflict of interest or ethical reasons.

6
Castrol Australia Ltd v EmTech Associates Pty Ltd (1980) 33 ALR 31.
7
Smith kline & French Laboratories (Australia) Ltd v Department of Community Services and Health
[1990] 22 FCR 73.
8
Australian football League v Age Company Limited [2006] VSC 281.
9
Ibid.
10
Bluescope Steel ltd v Kelly (2007) 72 IPR 289.
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 VI ‘Fusion Fallacy’ or Equitable Maxim
Courts exercising jurisdiction in both law and equity are required to maintain a separation between
equitable doctrines and common law rules. Rationalising and integrating legal and equitable causes of
action and remedies are examples of the ‘fusion fallacy’. 11 An account of profits is only granted to
remediate a breach of fiduciary duty, a breach of confidence or in response to the infringement of
intellectual property rights.12 As Hugo is suing on the basis of personal injury awarding him an
account of profit was an example of the ‘fusion fallacy.’ It cannot be an application of the equitable
maxim ‘equity will not suffer a wrong to be without a remedy’ as the cause of action was not
equitable.

VII Conclusion
Tom Watts can be prevented from acting on behalf of Hugo Chase. This can be done on the basis of a
court’s injunction based on a breach of confidence over the information found in the partners’ report.
The remedy awarded by the court to Hugo Chase is an example of the ‘fusion fallacy’ as it reflects a
court’s integration equitable remedy to a legal cause of action, thus rationalising the common law and
equity.

11
Fiona Burns, ‘The ‘Fusion Fallacy’ Revisited’ (1993) 5(2) Bond Law Review 1.
12
Warman International Ltd v Dwyer (1995) 182 CLR 544.
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